RULING ON AN APPLICATION

Introduction

Court File No.: CV-23-93224
Date: 2025/07/04
Ontario Superior Court of Justice
Re: Nicholas Nagy and Michael Arget, Applicants
-and-
Jacinthe Guay, Respondent
Before: Justice A. Doyle
Counsel: Kevin Butler and Jasmine Workun-Hill, for the Applicants; Charlene Kavanagh, for the Respondent
Heard: June 19, 2025 at Ottawa

Overview

[1] The parties are neighbours who are both affected by water flowing down from a property located behind them, Beechwood Cemetery.

[2] Both neighbours have attempted to reduce the flow on their properties and the consequences stemming from this water flow.

[3] This application originates from the applicants’ dissatisfaction with what the respondent has done to her property. She has built a curb wall consisting of concrete blocks along her driveway adjacent to the applicants’ property.

[4] The applicants allege that this is a water-related private nuisance which causes flooding on their property. In addition, this leads to increased water runoff onto their land.

[5] The applicants are seeking a removal of this curb wall as it constitutes a nuisance and does not comply with City of Ottawa by-laws.

[6] The respondent opposes the application as she has complied with all by-laws and the applicants have failed to prove that the infrequent overflow of water that might trickle onto the applicants’ property is a nuisance.

[7] The three issues the court must determine are:

1. Is the respondent in breach of City of Ottawa by-laws?
2. Does the installation of the curb wall create a nuisance such that it causes substantial and unreasonable interference with the applicants’ land or use or enjoyment of their land?
3. If the answer to either of the above is yes, should the court award a mandatory injunction compelling the respondent to remove the curb wall?

[8] For the reasons set out below, the court dismisses the application.

Background

[9] The applicants purchased the property located at 49 Lavergne Street (“49”) in May 2019. The respondent has owned the property located at 53 Lavergne Street (“53”) to the immediate south-east since 1990. She did not reside there from 2010 to 2022 as she lived in the United States and rented the home to tenants.

[10] The northern back portion of both properties abuts the Beechwood Cemetery land which is on a hill.

[11] The respondent’s driveway runs between her property and the applicants’ property from the street to her garage located at the back western side of her property. The applicants have a paved surface at the back of their land that previously connected to this driveway.

[12] When they purchased the property, the applicants were under the mistaken impression that the driveway was a shared driveway.

[13] The boundary between the two properties along the driveway slopes slightly towards the respondent’s land so that water from the applicants’ land flows onto the respondent’s property.

[14] Historically, water runoff from the Beechwood Cemetery flowed down the applicants’ property then onto the respondent’s driveway to the street following the natural elevation. Water runoff occurs especially in the spring when the snow melts.

[15] The water runoff issue became more of a problem in 2008 when Beechwood Cemetery removed trees to build a memorial and hence there were less trees to absorb the runoff from the snow melting in the spring.

[16] On August 23, 2019, the respondent complained to the applicants about this water flow leading the applicants to undertake work on their property.

[17] The applicants replaced the weeping tile, which they said had deteriorated, and they installed a gravel dry bed which would collect and hold water so it could seep into the ground. They placed paving stones over the dry bed with a one-inch gap that directed water into the centre of the bed. They also connected the downspout at the back of the house to a rain barrel and created an overflow trench.

[18] In the spring of 2023, the respondent removed a city tree and removed the grass in the public utility right of way.

[19] The respondent installed a line of concrete blocks along the boundary of her driveway and the applicants’ property.

[20] The concrete blocks are uniform in size except for one at the beginning of the row. The concrete blocks start at the top part of the driveway, which is adjacent to the applicants’ property, but do not extend to the street. Each block is 3 1/8 inches wide, 39 inches long and 7 13/16 inches high. They are not interred but only placed in the ground in a shallow manner for stability.

[21] In the spring of 2023, the City of Ottawa issued a stop work order prohibiting the respondent from proceeding with the changes to her property until she obtained a permit. She obtained a permit on September 24, 2023 and continued the work in May 2024. The respondent reinstated the grass to ensure that her driveway was not wider than five and a half metres to comply with by-laws and at her cross-examinations, she stated that she removed the part of the curb wall that violated the city’s right of way.

Applicants’ Position

[22] Since 2019, the applicants indicate that to alleviate the water runoff on the respondent’s property, they underwent considerable landscaping work and sought advice from landscapers and a municipal official.

[23] The applicants deny that these changes caused any extra waterflow to the respondent’s property.

[24] The applicants’ work on their property – replacing the weeping tile, following the recommendation of a municipal official to install a gravel dry bed and connecting the downspout to a rain barrel – indicates their good faith attempts to deal with the water runoff that was affecting them and the respondent.

[25] The applicants also installed three large bollards between the properties leading up to the applicants’ garage. Despite the respondent’s contention that the footings are partially on 53, the survey filed shows that the bollards are on the applicants’ property.

[26] With the construction of the curb wall, the water flow remains on the applicants’ property.

[27] Since the concrete blocks were installed by the respondent, the water that would naturally traverse the respondent’s property down to the street is now flooding the applicants’ front lawn, causing mud and grass dying off.

[28] This has caused damage to their front lawn. They have done remedial work to cover up the dead grass and mud with mulch.

[29] In addition, the applicants planted inground plants, which were installed on a permeable landscaping fabric which absorbs water.

[30] The water buildup also affects people, for instance, utilities personnel, who need to access the back of their property as they need to traverse over wet areas.

[31] The applicants submit that the respondent’s conduct has caused a substantial and unreasonable interference with their property.

[32] In addition, the respondent is not in compliance with City of Ottawa by-laws which require approval for a curb.

[33] The applicants request a mandatory injunction ordering the respondent to remove the curb wall.

Respondent’s Position

[34] The respondent submits that these issues have arisen due to the applicants’ displeasure in learning that the driveway was not a shared driveway available to both parties.

[35] When the applicants realized this, they took down the flower bed at the front of their property and installed an impermeable erosion barrier under the grass to stabilize the grass so they could drive over it to access the paved area at the back of their property.

[36] The respondent submits that the landscaping and installation of a raised flower bed on a sheeting with a raised edge directed more water toward her driveway, since her property is a lower elevation than 49 and slopes to the east.

[37] In warmer weather and in the spring thaw, excess water crossed over to the top of the respondent’s driveway and in colder climate, the water froze and created ice patches on her driveway in front of her garage. Despite requests, the applicants did not rectify this issue.

[38] In the summer of 2023, the respondent placed concrete blocks on the west side of her driveway to stop the excess water from entering her property in front of the garage.

[39] The respondent denies that the blocks have caused issues on the applicants’ property, specifically, the respondent denies that it caused the applicants’ grass to die. She states that the applicants’ lawn is in good shape as it is mowed regularly.

[40] The respondent indicated there was an increase in water flow due to the applicants’ landscaping, which included the removal of the permeable material which absorbed water in the applicants’ backyard and the removal of the grass that absorbed water in the flat area of his backyard.

[41] In addition, the applicants have admitted that at the point where the blocks end, which is part way down the driveway, the water crosses over to the respondent’s driveway.

[42] The applicants have admitted that excess water on their grass and flower beds occurs only after heavy rainfalls or during the spring thaw.

[43] Therefore, the respondent submits that nuisance has not been established.

[44] The respondent submits that she is in compliance with by-laws as evidenced by the City of Ottawa correspondence from the Senior By-Law Administrator in an email dated August 27, 2024.

Analysis

Is the respondent in breach of City of Ottawa by-laws?

[45] For the reasons elaborated below, the court finds that the applicants have not established on the balance of probabilities that the respondent is in breach of City of Ottawa, by-law No. 2003-447, Private Approach By-law (10 September 2003) (“By-law 2003-447”) and City of Ottawa, by-law No. 2018-164, Site Alteration By-law (9 May 2018) as repealed by City of Ottawa, by-law No. 2024-448, Site Alteration By-law (30 October 2024) (“By-law 2018-164”).

[46] The applicants rely on s. 440 of the Municipal Act, 2001, SO 2001, c 25 to bring this application, which provides that:

If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.

[47] The applicants do not have to demonstrate that the municipality acted unreasonably or in bad faith in declining to enforce the law: Syrowik v. Wheeler, 2021 ONCA 819.

By-Law 2003-447

[48] The applicants move under section 19 of By-law 2003-447, which provides:

No person shall construct on a private approach any curbing, headwalls, decorative stonework or landscaping or place any object on a roadway or sidewalk, the height of which extends above the level of the shoulder or the private approach.

[49] “Private approach” is defined as “an improved surface and where required a culvert within a highway and used by the owner or occupant of private property adjacent to the highway for vehicular access”: s. 1.

[50] “Shoulder” is defined as “part of a highway immediately adjacent to the roadway and having a surface, which has been improved for the use of vehicles with asphalt, concrete or gravel”: s. 1.

[51] “Curbing” and “decorative stonework” are not defined.

[52] The parties do not agree on the application of the meaning of “private approach” in this by-law. The applicants submit that a “private approach” is a driveway and hence the concrete blocks which form a curb constructed by the respondent is in breach of this by-law.

[53] The respondent indicates that it relates to the surface abutting and part of the highway that a property owner uses for vehicular use, and does not apply to the curb that she installed on her driveway which is private property.

[54] Neither party were able to provide jurisprudence defining “private approach”.

[55] By utilizing the plain meaning approach, it could be interpreted, as the respondent submits, that the city maintains authority over the municipality’s own property that may be used by private citizens.

[56] The court does not need to determine the meaning of “private approach” for the purpose of this application.

[57] Based on the record before me and for reasons articulated below, the court accepts that the respondent is not in violation of this by-law because:

• There is a communication from the city confirming the respondent complies with the by-law and that her file with the city of Ottawa is closed;
• The applicant, Mr. Nagy, also admits that he was told by the City of Ottawa that the respondent had complied;
• The respondent moved her curb after the work order was issued to comply with the requirement that the curb not encroach the right of way on her property; and
• There is no evidence that the respondent is facing work orders, violations, or infractions of the by-law.

Findings

[58] The record includes the communication dated August 2024 from the City of Ottawa that the respondent is in conformity with By-law 2003-447.

[59] In their factum, although not argued at the hearing, the applicants object to the admissibility of this email communication as it is hearsay.

[60] The applicants complained that the respondent did not produce the letter from the city indicating the requirements under the by-law. In my view, that letter would also be hearsay.

[61] Nevertheless, the respondent did provide information by way of an email confirming compliance and the court gives it little weight.

[62] Nevertheless, the respondent’s compliance with the by-law can be determined from the totality of the evidence.

[63] In 2023, the respondent removed the top layer of the driveway and installed the concrete blocks before she obtained the work permit.

[64] The city officials advised the respondent that by removing the grass on the right-hand side and paving that area, she was going beyond the five and a half metre restriction on the width of the driveway, so she had to reinstate the grass. She said in cross-examinations that she had already installed the cement blocks.

[65] She ceased the work as a result of the stop work order from the City of Ottawa as she required a work permit.

[66] The court accepts the respondent’s evidence that there was a right of way on her property on the front left side in favour of utilities and the city requested that she remove that part of the curb and the asphalt that she placed on the right of way.

[67] She removed the cement blocks close to the street as they were on the right of way.

[68] On this record, I do not accept the applicants’ argument that the respondent has only complied with the part of the by-law that requires the driveway to be five and a half metres and that she reinstall the grass.

[69] She obtained the work permit on September 24, 2023, and since it was late in the year, she completed the work the following spring.

[70] In 2024, she removed soil around the yard and worked on the garage to repair the rotten wood in the structure and paint it. She also had to excavate around the garage to complete this work.

[71] There is no evidence from the applicants or from the city that says that the respondent is not in compliance with the by-law.

[72] There is no other evidence of stop work orders or city personnel attending her property or any other type of conduct that would indicate that the curb is not in compliance.

[73] Rather, there is evidence that she removed the curb concrete blocks that were on the right of way of the city at the front of her property.

[74] In fact, the applicant, Mr. Nagy, admits that the City of Ottawa by-law office told him that the respondent is in compliance with the by-law. He had filed a complaint with the city alleging that the respondent had breached By-law 2003-447 and the city officials told him that there is no violation. In cross-examination, Mr. Nagy indicated that he did not agree with the city’s position. As a result, he has filed a complaint with the City of Ottawa as he has his own view of the wording of the by-law. Mr. Nagy believes that it is not compliant with sections 19 and 26 of the by-law.

[75] In conclusion, the applicants have not discharged their onus to show that the respondent is not in compliance with By-law 2003-447.

By-Law 2018-164 (repealed and now By-Law 2024-448)

[76] The applicants also submit that the respondent was in breach of By-law 2018-164 by installing the concrete blocks.

[77] When preparing for this hearing, the applicants became aware that By-Law 2018-164 was repealed on October 30, 2024 by By-law 2024-448.

[78] The applicants submit that the wording of By-law 2024-448 is not identical but the provision relevant to this case is the same.

[79] Section 5 of the repealed by-law prohibits site alteration, which has not changed in this new by-law.

[80] “Site alteration” is defined in By-law 2024-448 as “activities such as… the placement or dumping of Fill on land”: s. 1. The applicant pleaded that by placing concrete blocks on her land and creating a curb, this constitutes “fill” and is a site alteration prohibited under s. 5. The exemptions set out in s. 28 do not apply.

[81] The respondent was not served with this by-law and this is the first time it is mentioned. The respondent submits that this is the first time she has heard of an argument that her curb is a “fill”.

[82] Unlike the stop work order under By-law 2003-447, there is no evidence before the court that the respondent was advised by the City of Ottawa that she failed to comply with By-law 2018-164 (now By-law 2024-448).

[83] The court finds that the applicants have not satisfied the court, on the balance of probabilities, that the respondent’s curb is a ‘fill’ within the meaning of this by-law.

[84] Again, there is no evidence of concern by the city that the respondent has breached this by-law. There is no evidence from the city or an expert that this curb is a breach of the by-law, whether it is the repealed or new by-law. The respondent has not been charged with any infraction nor has she been convicted. The city has not been ordered to produce their file on a third-party records motion.

[85] In conclusion, the court finds that the respondent is not in breach of these by-laws.

Does the installation of the curb wall create a nuisance such that it causes substantial and unreasonable interference with the applicants’ land or use or enjoyment of their land?

[86] The leading case of Antrim Truck Centre Ltd. v. Ontario (Transportation), 2011 ONCA 419, para 79, described the law of nuisance as “any activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or his use or enjoyment of that land”. The Supreme Court of Canada approved this definition on the appeal of this decision: Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, para 18.

[87] At para. 82, the Court of Appeal specified that “substantial interference” will not include interference that is “so trifling as to amount to no interference at all”.

[88] The Supreme Court of Canada in Tock v. St. John's Metropolitan Area Board, at p. 1191, stated that in determining whether the interference is “unreasonable”, the court should consider four factors:

• The severity of the interference
• Character of the neighbourhood
• Utility of the defendants’ conduct
• Sensitivity of the plaintiff

[89] With respect to the reasonableness component of the test for private nuisance, the Supreme Court in Antrim emphasized, at para. 25, that the reasonableness of the interference must be assessed in light of all the relevant circumstances. Further, under the reasonableness inquiry, the court assesses, “in broad terms, whether the interference is unreasonable by balancing the gravity of the harm against the utility of the defendant’s conduct in all of the circumstances”: Antrim, at para. 26.

[90] In Tock, at p. 1192, and in Russell Transport Limited et al. v. The Ontario Malleable Iron Company Limited, at pp. 729-730, both courts held that if physical damage is proven then private nuisance could follow. “In the presence of actual physical damage to property, the courts have been quick to conclude that the interference does indeed constitute a substantial and unreasonable interference with the enjoyment of property”: Tock, at p. 1192.

[91] The applicants submit that by installing the cement blocks that resemble a curb along part of the respondent’s driveway, there has been a diversion of water from the back of the property abutting Beechwood Cemetery onto their grass, which they say causes flooding and forced them to change the landscape. Instead of a full lawn facing the street on the east side of their property, the applicants have a pile of mulch populated with inground plants.

[92] In addition, this water buildup interferes with access through the east side of the property to the back yard, which is necessary for utility companies if they do not go through the units.

[93] The respondent could have chipped away at the ice formation and it is not a unique challenge in Canada. She could have also applied salt, sand or other product to minimize the danger.

No substantial interference

[94] The applicants have failed to satisfy their onus to demonstrate that the curb has substantially interfered with their enjoyment of their land.

[95] I will deal with the issues of the respondent’s credibility raised by the applicants. The applicants submit that:

• The respondent was not present at the property from 2010 to 2022 when she returned from the US and therefore was not present during the period of time that she attests to about the water flow. I note that the applicants were not present either until 2019 when they purchased the property and they refer to similar history of the waterflow in their materials;
• The respondent indicated that the applicants’ renovations and landscaping caused the extra water flow, but then said it was the ice formation that caused her to install the cement blocks. However, I note that a previous tenant of the respondent stated that when he resided there from 2016 to 2022, ice buildup was a problem and predatesthe respondent’s purchase of the property;
• The respondent was not consistent as to how much water was flowing onto her property from the back of her property and from the applicants’ property. However, the applicants also admit that water drains from the Beechwood Cemetery to the back of the applicants’ land onto the respondent’s property down the driveway and to the street following the natural flow of the land’s elevation;
• The respondent says that the downspout was directed towards her driveway but the record shows that it is connected to a rain barrel. I agree that she is mistaken about this and this detracts from her credibility; and
• The material installed by the applicants was a permeable landscaping fabric and not, as the respondent states, a plastic or rubber membrane with a raised edge which acts as a barrier to water. I agree and again this detracts from her credibility.

[96] Nevertheless, on the totality of the evidence, including the numerous photos and video (filed by the applicants which demonstrate the water runoff on their property during the June 6th storm), the court makes the following findings:

• The applicants’ lawn in the front does not appear dead in recent photos filed;
• The applicants have experienced water flow during large rain storms or during spring thaw;
• The applicants have ice accumulation in spring thaws; and
• As the applicants indicated in cross-examinations, there is build-up of water “every time it rains”.

[97] The June 2024 storm caused temporary and flash flooding in Ottawa and the photos show that there was significant water on the respondent’s driveway as well from that storm.

[98] As stated by the Supreme Court in Antrim, at para. 22, whether an interference is substantial is an objective, not a subjective consideration: see also Tock, at p. 1191.

[99] The photos filed do not demonstrate substantial damage to the front lawn or dead grass, but rather a raised flower bed.

[100] The photos of the applicants’ lawn taken four and a half months after the respondent installed the concrete blocks shows a good lawn.

[101] The interference is infrequent and I do not find that there is substantial and unreasonable interference with the enjoyment of the applicants’ property on a regular basis.

Is it unreasonable?

[102] Even though the applicants have failed to demonstrate that the interference is substantial, I will still discuss whether it is unreasonable and discuss the four factors set out in Tock.

The severity of the interference

[103] As indicated above, the water issue is not a constant interference. By virtue of their location at the bottom of the hill, the parties will be at the mercy of the elements of the weather and the landscapes of their properties.

Character of the neighbourhood

[104] The slope ends with the respondent’s property and the respondent’s work has not changed the character of the neighbourhood.

Utility of the respondent’s conduct

[105] The respondent was dealing with the water runoff and the buildup of ice which was a concern to her as it posed safety risks.

[106] I find that the concrete blocks are not unreasonable as they do not create a hazard, emit noise or odor that disrupts the applicants.

Sensitivity of the applicants

[107] In Berry v. Trinidad Leaseholds (Canada) Ltd., [1953] 4 D.L.R. 503 (Ont. C.A.), at p. 506, the court stated that “one must not collect surface waters on one’s own land and ‘cast them in a body’ or artificially ‘channel them’ on to the lands of another to that other’s injury”.

[108] The applicants complain of the state of their front lawn and the inconvenient access to their backyard. They certainly have the right to full enjoyment to their property.

Balancing exercise

[109] Although Antrim dealt with a private owner and public bodies, it instructs courts to consider the reasonableness of the interference by balancing the competing interests.

[110] At para. 2, the court stated: “The balance is appropriately struck by answering the question whether, in all of the circumstances, the individual claimant has shouldered a greater share of the burden of construction than it would be reasonable to expect individuals to bear without compensation. Here, the interference with the appellant’s land caused by the construction of the new highway inflicted significant and permanent loss.”

[111] As discussed above, the court cannot say that in this case the applicants have suffered significant and permanent loss or damage to their property.

[112] Turning to the respondent’s conduct, at para. 29, the Supreme Court in Antrim stated:

The nature of the defendant’s conduct is not, however, an irrelevant consideration. Where the conduct is either malicious or careless, that will be a significant factor in the reasonableness analysis: see, e.g., Linden and Feldthusen, at pp. 590-91; Fleming, at s. 21.110; Murphy and Witting, at p. 439. Moreover, where the defendant can establish that his or her conduct was reasonable, that can be a relevant consideration, particularly in cases where a claim is brought against a public authority. A finding of reasonable conduct will not, however, necessarily preclude a finding of liability. The editors of Fleming’s The Law of Torts put this point well at s. 21.120:

. . unreasonableness in nuisance relates primarily to the character and extent of the harm caused rather than that threatened. . . . [T]he “duty” not to expose one’s neighbours to a nuisance is not necessarily discharged by exercising reasonable care or even all possible care. In that sense, therefore, liability is strict. At the same time, evidence that the defendant has taken all possible precaution to avoid harm is not immaterial, because it has a bearing on whether he subjected the plaintiff to an unreasonable interference, and is decisive in those cases where the offensive activity is carried on under statutory authority. . . . [I]n nuisance it is up to the defendant to exculpate himself, once a prima facie infringement has been established, for example, by proving that his own use was “natural” and not unreasonable. [Emphasis added.]

[113] I find that the respondent did not take all precautions to avoid harm to the applicants. In fact, she failed to obtain a permit from the City of Ottawa and underwent work that also impacted the right of way. She was required to complete remedial work to comply with the by-laws.

[114] Nevertheless, I do not find that the respondent’s conduct here is malicious or careless. She was attempting to deal with issues on her property and in doing so, the changes to her property had repercussions for the applicants.

[115] Therefore, when balancing the alleged gravity suffered by the applicants against the utility of the respondent's conduct, the court finds that any interference to the applicants is reasonable.

But for test

[116] In any event, if the court were to find that the interference was substantial and unreasonable, the applicants must prove that the respondent’s alleged tortious act caused the interference by satisfying the “but for” test for causation. That is, the applicants must demonstrate that on the balance of probabilities, “but for” the tortious act, the interference would not have occurred: see Dawes v. Gill, 2019 ONSC 5649, para 68.

[117] Regarding the “but for” test, the applicants must establish that the curb caused damage to their lawn. The only evidence is the video taken during a heavy rainstorm on June 6, 2024.

[118] There were no experts’ reports that could demonstrate the consequences of the water flow from Beechwood Cemetery and the impact of the work by the parties on their respective properties and to the other’s property.

[119] There is also the question of whether the applicants’ own work on their property, including re-grading landscaping and renovations, may have contributed to extra water flow. The applicants also admit that their landscaping altered the grade of the side and front of their property.

[120] The applicants have not established that some of the accumulating water that freezes on part of the side and front of 49 is caused by the respondent’s concrete blocks.

Conclusion

[121] The evidence indicates that both parties were attempting to deal with the natural waterflow and the applicants attempted to address issues when approached by the respondent.

[122] Nevertheless, they cannot change the stark reality that gravity means water will flow downwards and that both properties will be affected. This is clearly a challenge for both property owners that could have recognized when they purchased their properties.

[123] However, in all the circumstances, I find that the applicants have failed to satisfy their onus on the balance of probabilities that the respondent’s installation of cement block curb constitutes a nuisance or that she has failed to comply with city by-laws.

[124] Accordingly, the application is dismissed.

Costs

[125] I have reviewed the bill of costs and note the following:

• The applicants indicate that their total costs are over $35,000 and the respondent indicates that her actual costs are over $51,000;
• Both parties had numerous individuals working on their file: the applicants had eight people and the respondent had seven people;
• Given the number of people on the file, there would be duplication in work;
• The issue is very important to both parties given the impact on their property;
• The issue was not complex;
• Neither party engaged experts or other expertise to assist the court in making the above findings and did not incur that expense; and
• The materials included pleadings, legal argument and cross-examinations that were not lengthy.

[126] The successful party is presumptively entitled to costs.

[127] The court finds that a fair, reasonable and proportionate amount of costs to be awarded to the respondent is $18,000.

Justice A. Doyle
Date: July 4, 2025